EXHIBIT 10.1


 


***Text Omitted and Filed Separately


with the Securities and Exchange Commission.


Confidential Treatment Requested


Under
17 C.F.R. Sections 200.80(b)(4) and 240.24b-2.


 


FOURTH AMENDMENT


TO THE


COLLABORATIVE RESEARCH
AND LICENSE AGREEMENT


 


THIS FOURTH AMENDMENT TO THE
COLLABORATIVE RESEARCH AND LICENSE AGREEMENT (the “Fourth Amendment”)
is entered into as of April 14, 2008 (“Fourth
Amendment Effective Date”) by and between SENOMYX, INC. (“Senomyx”), a
Delaware corporation, having a principal place of business at 4767 Nexus Centre
Drive, San Diego, CA 92121, and NESTEC, Ltd. (“Nestlé”), a Swiss company, having a
principal place of business at Avenue Nestlé 55, CH-1800 Vevey, Switzerland.


 


WHEREAS, Senomyx
and Nestlé entered into that certain Collaborative Research and License
Agreement dated as of April 18, 2002, as amended by that certain First
Amendment dated October 23, 2003, that certain Second Amendment dated April 17,
2005 and that certain Third Amendment dated March 22, 2006, (collectively,
the “Agreement”);
and


 


WHEREAS, the
parties wish to amend the Agreement to extend the Collaborative Period for the [...***...]
Program in the manner set forth in this Fourth Amendment (capitalized terms
used but not otherwise defined in this Fourth Amendment shall have the meanings
given such terms in the Agreement).


 


NOW, THEREFORE, in
consideration of the foregoing premises and of the covenants, representations
and agreements set forth below, the parties hereby agree to amend the Agreement
as follows:


 


1.             The following
definitions of Appendix A of the Agreement are hereby added or amended and
restated herein. All other definitions in the Agreement will remain unchanged.


 


“Collaborative Period” means (i) in the case of the [...***...] Program the period beginning on the Effective Date and ending ninety-six (96) months thereafter, unless earlier terminated in accordance with Section 14; (ii) in the case of the [...***...] Program the period beginning on the Effective Date and ending thirty-six (36) months thereafter, unless earlier terminated in accordance with Section 14.”


 


2.             Section 7.1
of the Agreement is hereby amended such that the research funding for the [...***...]
Program commencing on the Fourth Amendment Effective Date is as follows:


 


Nestlé will pay Senomyx [...***...]
per month commencing on the Fourth Amendment Effective Date and through the
remainder of the Collaborative Period for the [...***...] Program, provided,
however, that upon achievement of the Second Interim Goal (as defined below) research
funding will be increased to [...***...] per month for the remainder of the
Collaborative Period for the [...***...] Program. 
For purposes of this paragraph, “Second Interim Goal” means identification
of at least one Compound that [...***...].  Payments
under this paragraph shall be paid


 






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quarterly in advance. 
Payments for any period which is for less than one (1) month of
the Collaborative Period will be a pro rata portion of the monthly
installment based on the actual number of days in such month. Any adjustments
in funding due to achievement of the Second Interim Goal will be made by Nestlé
within [...***...] of such goal or with the next quarterly payment, whichever is
earlier.


 


Funding levels prior to the Fourth Amendment Effective Date shall
remain unchanged.


 


3.             A new Section 14.5
is hereby added to the Agreement as follows:


 


“Early Termination of the
Collaborative Period for the [...***...] Program by Nestlé.  Nestlé may terminate the [...***...] Program
without cause effective as of April 18, 2009 or effective as of any
quarterly anniversary thereof (July 18, 2009, October 18, 2009 or January 18,
2010) prior to the end of the Collaborative Period upon at least thirty (30)
days prior written notice to Senomyx.  Nestlé’s
obligations for research funding under Section 7.1 for the [...***...] Program
will cease upon such termination of the Collaborative Program. In the event
that Nestlé terminates the [...***...] Program, the rights and obligations provided
for under Section 3 and the licenses granted to Nestlé under Section 8
will terminate with respect to the [...***...] Program.  For the avoidance of doubt, early termination
of the [...***...] Program under this Section 14.5 will not terminate rights and
obligations with respect to [...***...] Compounds. In addition, for the avoidance
of doubt, in the event that Nestlé properly terminates the [...***...] Program
under this Section 14.5, Nestlé is not obligated to provide additional
research funding pursuant to Section 14.2.”


 


4.             A new Section 10.11
is hereby added to the Agreement as follows:


 


“Promptly after
the Fourth Amendment Effective Date, Senomyx will [...***...] to Nestlé: [...***...] (collectively,
together with any notes, summaries or other documents that contain or reflect
such [...***...], the “Senomyx [...***...]”). In addition, in the event that during the
Collaborative Period [...***...] as the [...***...], then Senomyx will [...***...] to
Nestlé (and such [...***...] collectively, together with any notes, summaries or
other documents that contain or reflect such [...***...], will also be considered Senomyx
[...***...]).


 


The Senomyx [...***...]
is owned exclusively by Senomyx and considered Confidential Information of
Senomyx subject to the confidentiality requirements of Section 10 of the
Agreement and the additional restrictions set forth in this Section 10.11.


 


Notwithstanding
anything to the contrary in this Agreement, to the extent that any inventions
or Know-How are generated, developed or discovered by Nestlé at any time during
the period commencing upon Nestlé’s receipt of Senomyx [...***...] and ending on
such date that such information is no longer considered Confidential
Information of Senomyx (as set forth in Section 10.4) as a result of Nestlé’s


 






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access to the
Senomyx [...***...] disclosed under this Section 10.11, such inventions and
Know-How shall be owned solely by Senomyx.


 


Notwithstanding
anything to the contrary in this Agreement, for Senomyx [...***...] which is
orally, electronically or visually disclosed to Nestlé, Senomyx will have no
obligation to deliver to Nestlé a written document or documents describing the
information and referencing the place and date of such oral, visual, electronic
or written disclosure and the names of the persons to whom such disclosure was
made.


 


Nestlé will hold
the Senomyx [...***...] in strict confidence and will limit access within Nestlé to
the Senomyx [...***...] to only the following Nestlé employees:  [...***...]. 
In addition, Nestlé may provide access to the Senomyx [...***...] to the
Nestlé [...***...], subject to the restrictions of Section 10.2.  Nestlé will not disclose any Senomyx [...***... ...***...]
to any individual who does not hold a position specified above or to any Affiliate
or Third Party.  The Senomyx [...***...] will
not be reproduced by Nestlé in any form, except that Nestlé may summarize the
Senomyx [...***...] and maintain one copy of such summary in a secure location with
limited access for legal purposes only.  Upon
request of Senomyx, Nestlé will promptly return to Senomyx all Senomyx [...***...]
received from Senomyx hereunder; provided, however, that Nestlé may maintain
one copy of Senomyx [...***...] in a secure location with limited access for legal
purposes only.  Until such time as the [...***...]
is no longer considered Confidential Information of Senomyx (as set forth in Section 10.4),
Nestlé will use the Senomyx [...***...] for no purpose other than evaluating its [...***...]
Program collaboration with Senomyx.  Without
limiting the foregoing, Nestlé agrees it will not use the Senomyx [...***...] in
research or development within Nestlé, or with any Affiliate or Third
Party.  Senomyx retains all rights in the
Senomyx [...***...] and nothing is intended to convey or transfer ownership or the
grant of any license or sublicense to the Senomyx [...***...].”


 


5.             The terms and conditions of the
Appendix B Research Plan for the [...***...] Program will be updated at the next
meeting of the Steering Committee and will be incorporated into this Agreement
by reference.


 


6.             Senomyx will issue a press release to announce the
execution of this Fourth Amendment and the material terms; provided, however,
that the extent of disclosure of such material terms shall be no more than is
required to comply with applicable SEC disclosure requirements and otherwise
subject to the prior written consent of Nestlé. Thereafter, Nestlé and Senomyx
may each disclose to Third Parties the information contained in such press
release without the need for further approval by the other party.


 






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7.             Except as specifically amended by this Fourth Amendment,
the terms and conditions of the Agreement shall remain in full force and
effect.


 


8.             This Fourth Amendment will be
governed by the laws of the State of California, U.S.A., as such laws are
applied to contracts entered into and to be performed entirely within such State.


 


9.             This Fourth Amendment may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


 


IN WITNESS WHEREOF,
the parties have executed this Fourth Amendment effective as of the Fourth
Amendment Effective Date. 


 


 


	
  SENOMYX,
  INC.  

  	
   

  	
  NESTEC
  LTD.:  

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ Kent Snyder  

  	
   

  	
  By:

  	
    /s/ P. Van
  Bladeren 

  
	
   

  	
   

  	
   

  
	
  Name:

  	
    Kent Snyder  

  	
   

  	
  Name:

  	
    P. Van
  Bladeren 

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   President and CEO  

  	
   

  	
  Title:

  	
   VP
  Science & Res/NRC

  	 

	
   

  	
   

  	
   

  
	
  Date:

  	
    April 14,
  2008

  	
   

  	
  Date:

  	
    14
  April 2008